be known at the time by the party doing it, but depends upon a subsequent event. We are of opinion, however, that it is impossible to construe the act of parliament as intending that the periods of years therein mentioned should terminate at a different time from that fixed in express and positive terms. If the words of the statute were capable of being modified, so as to avoid an inconvenience plainly and manifestly arising from a strict construction of them, we ought to do so; but here the words are precise and unambiguous, and the mischief suggested is perhaps rather apparent than real; and most cases of grants by prescription before the act passed were of the same nature, and the validity of rights gained by them depended much upon the mode of enjoyment, until that action was brought in which they came in question; and with respect to the form of the plea, which is at first sight somewhat incongruous, it is to be observed that there is something of the same kind of incongruity, though by no means to the same extent, in the usual mode of pleading a prescription, which states 'that some person seised in fee from time whereof the memory of man is not to the contrary, until and at the time when, &c., and from thence hitherto hath had and enjoyed, and hath been used and accustomed to have and enjoy, and still ought of right to have and enjoy,' a particular easement, and then justifies the act done by reason of that enjoyment, which enjoyment is both before and after the time of such act. It appears to us, that the statute in question intended to confer, after the periods of enjoyment therein mentioned, a right from their first commencement, and to legalize every act done in the exercise of the right during their continuance." The court held the pleas sufficient in point of law. (Wright v. Williams, 1 Mees. & W. 77, 98-100. See King v. Inhabitants of Calow, 3 Maule & S. 22.)

In case the declaration stated that the plaintiff was lawfully possessed of a mill, and by reason thereof of right ought to have and enjoy the benefit of the water of a watercourse, which ran and flowed by means of a weir therein erected a little above the plaintiff's mill, being kept at a certain height, unto the said mill of the plaintiff, for supplying it with water for the working thereof; and complained that the defendant wrongfully pulled down the weir, and placed and kept it at a lower height than it ought to have been, &c. The defendant pleaded that, before and at times when, &c., he was the occupier of a certain close adjoining to the watercourse, and that he and all others the occupiers for the time being of the said close, for twenty years next before the commencement of the suit, enjoyed as of right and without interruption the right of, from time to time as occasion required, removing a part of the weir and placing and keeping it at a lower height than the rest, to such an extent and for such a time as was necessary for diverting enough of the water to irrigate the said close; that at the times when, &c., irrigation was necessary for the close; wherefore the defendant removed the said part of the weir, and placed and kept it at such lower height, to such an extent and for such a time as, and no more or longer than was necessary for diverting the water for the irrigation of the said close, quæ sunt eadem, &c. It was held, that this plea was good; that it was not an argumentative traverse of the right alleged in the declaration, inasmuch as it set up a right which, under this statute, was not complete until the commencement of the suit, and therefore was not inconsistent with the plaintiff's right to have the weir at a greater height at the time of the act complained of. (Ward v. Robins, 15 Mees. & W. 237.)

The interruption which defeats a prescriptive right under 2 & 3 Will. 4, c. 71, is an adverse obstruction, not a mere discontinuance of user by the claimant himself. (Carr v. Foster, 3 Q. B. 581. See sect. 6, post, p. 26, n. (n).)

2 & 3 Will. 4,

c. 71, s. 4.

Interruption means an obstruction by the owner of the locus in quo, but it Interruption, is to amount to nothing unless acquiesced in for a year. (Onley v. Gardiner, what. 4 Mees. & W. 497.) A party filing a bill to establish a prescriptive right under this act must show that there was not an interruption for one year before the time of filing the bill. (Ennor v. Barwell, 2 Giff. 420, 421.)

Where an obstruction to an ancient light had existed more than twelve months, but a promise had been given to remove the obstruction, and twelve months had not elapsed from the date of that promise before proceedings

2 & 3 Will. 4, c. 71, s. 4.

Enjoyment for nineteen years and a fraction.

Interruption by natural cause.

Right not disproved by interruption.

were taken, it was held, that there had not been such an interruption of the enjoyment as would deprive the owner of the light of his remedy. (Gale v. Abbott, 8 Jur., N. S. 987; 10 W. R. 748.)

A claim to lights may be obstructed or interrupted by the erection of a hoarding or other screen by the owner of the servient tenement. The legislature evidently considered the passage of light-which bears a very close analogy to that of air-to stand upon a different footing from the other easements with which it had been dealing in the preceding section; and if it had intended to extend the right to the uninterrupted passage of wind and air, it would have done so in express terms. (Webb v. Bird, 10 C. B., N. S. 283. See ante, p. 6.)

The right to an easement which has been enjoyed for nineteen years and a fraction, and is then interrupted by the owner of the soil, may still be acquired under this statute at the end of the twentieth year; for the interruption to defeat twenty years' user must have been acquiesced in or submitted to for a whole year. In an action for obstructing certain windows, in a house occupied by the plaintiff, it appeared that at the time when a wall which caused the obstruction was erected, the part of a window had existed and been enjoyed, and the use of the light and air through the same had been enjoyed for the space of nineteen years and 330 days only, the period of a year not having elapsed from the time of the erection of the wall until the commencement of the action in which the right had been brought into question. The plaintiff had notice of the erection and of the prevention of the light and air from entering thereby through the said part of the window, and at the time of the commencement of the action, the part of the window had been made, and had existed and been enjoyed, and the access and use of light and air through the part of the window had been enjoyed for the full space of twenty years, except as aforesaid, without any interruption except the interruption above mentioned, and not under any consent or agreement given by deed or writing; and at the time of the commencement of the action such interruption had not been acquiesced in for one year after the plaintiff had notice thereof. If the 3rd section had stood alone, the court held that the plaintiff below could not have established any claim to the use of the light in question, because it had not been actually enjoyed with the messuage for the full period of twenty years before the commencement of the action, but only for nineteen years and 330 days, when the enjoyment was interrupted by the erection of the wall. The 4th section, however, defines the meaning of the word interruption, and as upon the trial it was proved that the erection of the wall, which was the act complained of, had not been acquiesced in for one year after notice, inasmuch as the action was commenced within a few months after the erection of the wall, the court was of opinion that such erection of the wall and continuing it so erected, was not an interruption within the meaning of the 4th section of the act. (Flight v. Thomas, 11 Ad. & Ell. 688; 3 P. & Dav. 442, affirmed by the House of Lords, 5 Jurist, 811; 8 Cl. & Fin. 231. See 17 Q. B. 272; ante, p. 15, n. (k).)

Where it appeared that at a period much earlier than twenty years before the commencement of the action, a stream of water had flowed through the plaintiff's lands; but that there had been some interruption about twentytwo years before the action, and it was not till within nineteen years that the stream had again flowed constantly in its former course, and it was objected that there was a want of sufficient evidence to support the plaintiff's claim, Tindal, C. J., said, it would be very dangerous to hold, that a party should lose his right in consequence of such an interruption; if such were the rule, the accident of a dry season, or other causes over which the party could have no control, might deprive him of a right established by the longest course of enjoyment. (Hall v. Swift, 4 Bing. N. C. 381; 6 Scott, 167. See the remarks of Patteson, J., on that case, 3 Q. B. 585, 586; and Carr v. Foster, 3 Q. B. 381, post, p. 26, n. (n).)

To an action of trespass for taking the plaintiff's cattle in an open field, called P. and G. field, and impounding them, the defendant pleaded, 1st, that T. B. and his ancestors had been immemorially used and accustomed to have for themselves, and their heirs and assigns, the sole and several pasturage

in 217 acres of P. & G. field in gross for all his and their cattle, from the 4th September to the 5th April; that T. B., in 1755, by indenture, granted the said pasturage to S. B., his heirs and assigns for ever; that J. B. (who claimed by descent from S. B.), in 1836, demised the said pasturage to the defendant, who seized the plaintiff's cattle because they were depasturing on the said 217 acres. The second plea alleged a right of sole pasturage in gross for thirty years before the commencement of the suit (under the 1st section of this statute) in J. B. and his ancestors, and a demise from him to the defendant, concluding as in the first plea. The replication traversed the right of T. B., as alleged in the first plea, and the enjoyment of J. B. as of right, without interruption, for thirty years, as alleged in the second. It appeared in evidence, that within the last twenty years encroachments had been made by buildings and enclosures on the 217 acres, and that above thirty acres had been thus appropriated, but no encroachments had been made on the part of the 217 acres on which the alleged trespass was committed; it was held, that these interruptions being so recent did not disprove the right of T. B. to the pasturage in 1755, as alleged in the first plea; and that not having been made on that part of the land where the plaintiff's cattle were depasturing, they were not conclusive evidence of an interruption of the enjoyment of that part by J. B., as alleged in the second plea. (Welcome v. Upton, 6 Mees. & W. 536.)

2 & 3 Will. 4,

c. 71, s. 4.

V. PLEADINGS.

case the claimant may allege his

before this act.

In pleas to trespass and other party used to

pleadings, where

allege his claim

5. In all actions upon the case and other pleadings, wherein In actions on the the party claiming may now by law allege his right generally, without averring the existence of such right from time imme- right generally as morial, such general allegation shall still be deemed sufficient, and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation (m).

(m) The leading provision of this statute is in favour of enjoyment "as of right," that is, of such a nature that its origin could be reasonably referred to nothing but some right, though it were not capable of being exactly described. (Per Lord Denman, C. J., 4 Q. B. 355. See 1 Exch. R. 286.)

from time immemorial, the period this act may be alleged; and other matters to

mentioned in

exceptions or

be replied
specially.

2 & 3 Will. 4, c. 71, s. 5.

Meaning of words "claiming right"

and "as of right."

Pleading enjoyment of an easement.

When licence must be replied specially.

Licence must be

co-extensive with

the right claimed.

The words, "enjoyed by any person claiming right," applied to easements in the 2nd section, and "enjoyment thereof as of right," in the 5th section of this act, mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many occasions of using it, but an enjoyment had openly and notoriously, without particular leave at the time by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract or licence, in case of a plea for twenty years. (Tickle v. Brown, 4 Ad. & Ell. 369; 6 Nev. & M. 230. See Bright v. Walker, 1 Cr., M. & R. 219; ante, pp. 11, 12; Arkwright v. Gell, 5 Mees. & W. 333.)

The 5th section gives a new plea, by enacting, that in certain cases it shall be sufficient to allege the enjoyment "as of right." If the parties choose to avail themselves of that provision, they must follow the very words; and if they neglect to do so, the plea is bad, and the omission would be ground of demurrer. Since this statute, it is usual in pleading a right of way to plead first a prescriptive right, then a right of way existing for the last forty years, and then a right of way existing twenty years, and so of other rights under that statute. (Per Alderson, B., Earl of Stamford v. Dunbar, 13 Mees. & W. 827.)

A plea in trespass alleging that the defendant and all other prior occupiers of a certain tenement, for twenty years next before the commencement of the suit, have had, used and actually enjoyed without interruption, and of right ought to have had, used and actually enjoyed, &c. a way through the locus in quo, was held to be bad after verdict, as the actual enjoyment was not alleged to have been under the right claimed, and the enjoyment therefore was not shown to be "as of right," according to the 5th section. (Holford v. Hankinson, 1 Dav. & Mer. 473; 5 Q. B. 584.) The plea alleged a defective title, and came within the reason of the decision in Jackson v. Pesked, 1 Mau. & S. 234. The distinction between a defective statement and the statement of a defective title was exemplified in Davis v. Black, 1 Q. B.900, and Rutter v. Chapman, 8 Mees. & W. i.

Where a defendant pleads an enjoyment of an easement for thirty years under this act, and the plaintiff relies on the existence of a life estate, or any of the other portions of time which by sect. 7 are to be excluded from the computation of the thirty years, not being inconsistent with the actual fact of enjoyment, he is bound under the 5th section of this statute to plead such life estate, &c. specially. (Pye v. Mumford, L. J. 1848, Q. B. 138; 12 Jur. 578; 5 Dowl. & L. 414.)

It has been decided upon this section, that where a defendant justifies under an enjoyment of twenty or forty years, if the plaintiff relies upon a licence covering the whole of that period, he must reply such licence specially but a licence granted and acted on during the period may be given in evidence under the general traverse of the enjoyment " during the period alleged, showing that there was not, at the time when the agreement was made, an enjoyment as of right;" and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 369; 6 Nev. & M. 230.)

To a declaration in trespass qu. cl. fr. the defendant pleaded, that he and the former occupiers of a house and land had for twenty years used and enjoyed as of right a certain way on foot and with horses, &c., from and out of a common highway, towards, into, through and over the plaintiff's close, to the defendant's house and lands and back, at all times of the year, at their free will and pleasure. The replication averred, that the defendant, &c. used and enjoyed the right of way mentioned in the plea, but they did so under the plaintiff's leave and licence. At the trial it appeared, that the defendant and the former occupiers of his house and land had an admitted right of way from thence over the locus in quo to the highway, and across the highway to a close called Reddings, and that for the last twenty years they had a licence from the plaintiff to use, whenever they pleased, a way from

the defendant's house and lands over the locus in quo to the highway and back, when they had not any intention of going to Reddings. It was held, that the replication was not supported by this evidence, and that the plaintiff was bound to show a licence co-extensive with the right claimed in the plea and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 769.)

2 & 3 Will. 4,

c. 71, s. 5.

The asking leave from time to time within the forty or twenty years breaks The effect of askthe continuity of the enjoyment as of right, because each asking of leave is ing leave. an admission that, at that time, the asker had no right; and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right. (Monmouthshire Canal Co. v. Harford, 1 Cr., M. & R. 614. See Tickle v. Brown, 4 Ad. & Ell. 383.) Lord Denman, C. J., said, that in looking at the report of the case of the Monmouthshire Canal Co. v. Harford, (1 Cr., M. & R. 614; 5 Tyr. 68; see post,) we find that the decision rests on this ground, viz. that the asking leave from time to time within the forty or twenty years breaks the continuity of the enjoyment as of right, because each asking of leave is an admission that, at that time, the asker had no right; and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right. To this ground of decision we quite accede; and it will follow, that not only an asking leave, but an agreement commencing within the period may be given in evidence under the general traverse, notwithstanding the words of the 5th section; for the party cannot and does not rely on it as an answer to an enjoyment as of right which he confesses, nor as avoiding any such enjoyment during the time covered by the agreement; but as showing that there was not, at the time when the agreement was made, an enjoyment as of right; and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 383, 334.) In Beasly v. Clark (3 Scott, 258; 2 Bing. N. C. 709), Tindal, C. J., said, "Under a replication denying that the defendant had used the way for forty years as of right, and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time-as, that it was used by stealth, and in the absence of the occupier of the close, and without his knowledge; or that it was merely a precarious enjoyment by leave and licence, or any other circumstances which negative that it was an user or enjoyment under a claim of right; the words of the 5th section not being inconsistent with the simple fact of enjoyment, being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised as of right." In Onley v. Gardiner, (4 Mees. & W. 494,) it was decided, that unity of possession was "inconsistent with the simple fact of enjoyment as of right," and therefore need not be specially pleaded. The simple fact of enjoyment referred to in the 5th section is an enjoyment "as of right," and proof that there was an occasional unity of possession is as much in denial of that allegation, as the occasionally asking permission would be.

In Clayton v. Corby, 2 Q. B. 813, it was held, that evidence of unity of What receivable possession was receivable under the traverse of a plea of enjoyment for sixty in evidence. years, inasmuch as such proof went to show that the enjoyment was not as

of right. (See Pye v. Mumford, 5 Dowl. & L. 414, post, p. 27.)

In trespass quare clausum fregit, to a plea of enjoyment of a right of way over the plaintiff's close, by the occupiers of a close called W. for twenty years next before the commencement of the suit, under this statute, the plaintiff replied that, before the period of twenty years mentioned in the plea, one W. C. was seised in fee, as well of the close mentioned in the declaration as of the close called W., and continued so seised during part of the said period of twenty years, to wit, until, &c., when he died so seised, it was held bad on special demurrer; for that unity of seisin was not inconsistent with the right as alleged in the plea, and unity of possession (if that were meant by the replication) might have been given in evidence under a traverse of the right as alleged in the plea. (England v. Wall, 10 Mees. & W. 699.)